Who’s Against Transparency in Government?—A Commentary by Ian Ayres ’86

February 7, 2008

Who’s Against Transparency in Government?—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on February 7, 2008.

Who’s Against Transparency in Government? By Ian Ayres ’86

Peter Hain has resigned as the U.K.’s Secretary of State for Work and Pensions because he failed to declare “donations to his campaign for the Labour deputy leadership worth more than £100,000.” But Bruce Ackerman and I think that the campaign disclosure law is misguided, and suggest an alternative in an op-ed that we wrote in The Guardian.

Transparency in government has a glorious tradition. Justice Louis Brandeis long ago said, “publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” But there exists in our government a central mechanism of democracy that stands against this cult of disclosure — the voting booth. Ballot secrecy was adopted toward the end of the nineteenth century to deter political corruption. Before the secret ballot, people could buy your vote and hold you to your bargain by watching you place that vote. Voting booth privacy disrupted the economics of vote buying, making it much more difficult for candidates to buy votes because, at the end of the day, they could never be sure who had voted for them.

A similar anti-transparency argument can be applied to campaign finance. We might replicate the benefits of the voting booth by creating a “donation booth,” or a screen that forces donors to funnel campaign contributions through blind trusts. Like the voting booth, the donation booth would keep candidates from learning the identity of their supporters. Just as the secret ballot makes it more difficult for candidates to buy votes, mandating anonymous donations through a system of blind trusts might make it harder for candidates to sell access or influence because they would never know which donors had paid the price. Knowledge about whether the other side actually performs his or her promise is an important prerequisite for trade. People — including political candidates — are less likely to deal if they are uncertain whether the other side performs. The secret ballot disrupts vote buying because candidates are uncertain how a citizen actually voted; anonymous donations disrupt influence-peddling because candidates are uncertain whether contributors actually contributed.

So instead of mandating transparency, we might do better to mandate a kind of non-transparency.

Adam Liptak recently reported on another study showing that the decisions of judges are biased in favor of their contributors:

In nearly half of the [Louisiana Supreme Court cases reviewed], over a 14-year period [that] ended in 2006, a litigant or lawyer had contributed to at least one justice, sometimes recently and sometimes long before. On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time.

But instead of stepping away from the democratic advantages of judicial elections, it would be possible to mandate that contributions to judicial candidates be given anonymously — through something like a donation booth or a blind trust.

As it turns out, we’ve already experimented with donation booths in regard to judicial elections. The commentary to the 1972 Code of Judicial Conduct (”CJC”) stated that, “the [judicial] candidate should not be informed of the names of his contributors unless he is required by law to file a list of their names.” The CJC authors wanted anonymity to reduce just the kinds of corruption that Liptak discussed. A requirement of anonymous donation was subsequently adopted — and, to varying degrees, applied — in eleven different states (Arkansas, Colorado, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, and Wyoming). Post-Watergate, most of these states stepped away from mandatory anonymity when they passed across-the-board disclosure statutes.

But the rationale, of course, for the 72 code is manifest: judges don’t need to know the identity of their donors. Judicial decisions should be based on the merits of cases, not on contributors’ money. As such, there is similarly no good reason why legislators or executives need to know the identity of their donors. An individual’s power to influence government should not turn on personal wealth.

Bruce and I (and Jeremy Bulow and I) have been writing about the virtues of a donation booth for a while. You can learn how we respond to the “cashed check” problem, and even read a model statute in our book, Voting With Dollars. If you like the idea of a donation booth, or our related idea of contribution vouchers, you can learn more about how to make them a reality at http://www.citsov.org/.